ORTEGA v. THE STATE OF NEW YORK, #2000-016-007, Claim No. 96015

Synopsis

Inmate alleged negligence of the state in connection with his fall on ice in
the recreational yard of Sullivan Correctional Facility. Claim was
dismissed.

Case Information

UID:

2000-016-007

Claimant(s):

LUIS ORTEGA

Claimant short
name:

ORTEGA

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

96015

Motion number(s):

Cross-motion
number(s):

Judge:

Alan C. Marin

Claimant's
attorney:

Luis Ortega

Defendant's
attorney:

Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG

Third-party defendant's
attorney:

Signature date:

April 4, 2000

City:

New York

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

This claim was tried on March 21, 2000 at Sullivan Correctional Facility. In
his claim, Luis Ortega alleges that owing to the state's negligence, he was
injured when he tripped and fell on ice in the Sullivan Correctional Facility
recreational yard on February 6, 1997 at 7:00 p.m. Claimant testified on his
own behalf. Defendant called correction officer Tucker.

Claimant explained that he was walking in the western part of the yard near the
basketball court and slipped because of the ice and a hole in the cement. He
could not recall the dimensions of the hole, which was not mentioned in his
claim. Ortega stated that he had been at Sullivan for several months prior to
the fall, during which time he regularly went to the yard and had seen the hole
before, but never reported it.

Ortega also testified that just before his fall, he observed inmate porters
putting down salt. He added that on some occasions, inmates were not allowed out
in the yard because of snow and ice conditions. Claimant could not recall the
weather conditions on the day of the incident or in the preceding days, other
than to say that it was cold.

As to his injuries, Ortega indicated that he fractured his leg and was taken to
the hospital. He said that he was still not well, his balance was off and he
limps and wears an ace bandage. He added that his leg hurts when he walks a
good deal and in any case, is very careful when he walks. Claimant also recited
problems with his head and back, but did not elaborate.

Officer Tucker testified that he and another officer were on duty in the yard
on the date of claimant's accident. He described the yard as large – more
than 100 yards in length. He said that on an average day, there are thirty to
sixty inmates using the yard at one time. He explained that the yard was always
open unless conditions prohibit it, such as fog, lightning, a heavy downpour or
construction.

Tucker said that in the winter, the yard is cleared of snow and ice with plows,
calcium chloride, shovels, ice choppers and picks. Before inmates are allowed
into the yard, the officers assigned to the yard inspect it and if they find any
condition making it inappropriate to allow inmates into the yard, they inform
the supervisor who decides, for example, to put out more calcium chloride or not
to open the yard. He said that the calcium chloride is spread by inmate porters
and that the yard is opened several minutes after spreading it. He explained
that since ice in the yard often melts in the day and freezes at night, calcium
chloride is sometimes put down to prevent build up.

According to Tucker, there were no holes in the yard; all he recalled were tiny
cracks. As to the condition of the yard that day, Tucker said he had to assume
it was fine or otherwise the yard would not have been open. Tucker said that he
did not see Ortega fall. Rather, two inmates pointed Ortega out -- he was lying
on the ground. Tucker recounted that he went over to Ortega, asked him if he
was in pain and Ortega said yes. Tucker then called a "Code Blue" and Ortega
was removed from the yard on a stretcher.

* * * * *

It is not disputed that the state has a duty to maintain reasonably safe
premises. See,

e.g., Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). But the
state is not an insurer and negligence may not be inferred solely from the
occurrence of an accident. See Mochen v State of New York, 57 AD2d 719,
396 NYS2d 113 (4th Dept 1977). In order to establish liability, plaintiff must
show either that the defendant created, or had actual or constructive notice of
the condition which caused plaintiff's accident. See, e.g., Bernard v
Waldbaum, Inc., 232 AD2d 596, 597, 648 NYS2d 700, 701 (2d Dept 1996).

In this case, with regard to the ice, notice is not at issue because the only
evidence introduced at trial was that the yard had been cleared before
claimant's accident. Even assuming that there was a patch of ice on which
claimant fell, failure to remove

all snow and ice from an area does not constitute negligence. See, e.g.,
Bricca v New York Telephone Company, 37 AD2d 564, 322 NYS2d 585, 587 (2d
Dept 1971), in which the Second Department held that "it was error for the court
not to clearly instruct the jury that the failure to completely remove the snow
and ice was not negligence. . . On the testimony of this case the only way the
jury could find for plaintiff is if they found that the ice was made choppy and
more hazardous as a result of defendant's activities . . ." Ortega presented no
evidence to show that the ice on which he fell was made more hazardous by
defendant's removal activities.

With regard to the hole to which Ortega belatedly referred, he presented no
documentary evidence thereon. However, had he proved its existence, claimant
failed to present any evidence that defendant had notice of such hole (in fact,
Ortega testified that he had seen the hole but failed to report it).

In sum, claimant failed to prove defendant's negligence by a fair preponderance
of evidence adduced at trial, and the claim of Luis Ortega is accordingly
dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

April 4, 2000New York,
New YorkHON. ALAN C. MARINJudge of the Court of Claims